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If DOMA Survives, Then What?

Working on the assumption that Section 3 of DOMA survives before the Supreme Court because the Court will determine it satisfies rational basis scrutiny, what then? Obviously, Section 3- the definition of marriage as being between a man and a woman for federal purposes- is the framework as concerns the federal government that holds together the remainder of the law. As stated in previous entries, during the original legislative debate, proponents of the law insisted that nothing in the law prohibited any state, like Massachusetts, from recognizing and performing same sex marriages. Also during that debate, Rep. Pat Schroeder and Sen. Ted Kennedy advanced the argument that the law would lead to discrimination against homosexuals and that the law was simply codifying a persistent prejudice against the LGBT community. Kennedy, in fact, introduced corollary legislation to avoid discrimination, but that effort was rejected.

Is DOMA, and are gay marriage laws, discriminatory against the LGBT community? As stated previously, most laws create classifications that work to the disadvantage of some that can be described as being discriminatory to some extent. That is simply the nature of the beast. However, where it becomes a constitutional problem is when a suspect class is involved (homosexuals are not) and/or whether a fundamental right is involved (marriage is a fundamental right/same-sex marriage is not). Some may believe that this last part- the part about a fundamental right- is legal hair-splitting. They adopt the belief that “marriage is marriage is marriage.” However, recall that the Court looks to our Nation’s history and traditions in order determine whether the “right” is fundamental and NOWHERE, until quite recently, is there a history or tradition of same sex-marriage.

Granted, some traditions break down over time. What may have been the norm in the 1800s in certainly not the “norm” today. But, given the push-back against the LGBT community, obviously the definition of marriage as being between a man and a woman does not fall in that category. Recall that a majority of states have a constitutional provision or law defining marriage as between a man and a woman. Some have argued that if gay marriage was to be ruled a fundamental right, it would lead to the slippery slope where anything goes regarding marriage. This leads to ridiculous charges that laws against incestuous marriages, those involving minors, or even against bestiality would have to fall. Those irrational fears could be addressed by defining marriage, in the same-sex context, as being between two consenting adult (by state definition) humans regardless of gender who are unrelated (by state definition).

So, if Section 3 is upheld, or even later legislatively amended to expand the definition of marriage at the federal level (the preferred method), what about Section 2? This section states that if a same-sex marriage is recognized in one state, then another state that does not recognize gay marriage is under no obligation to recognize that marriage within their borders. There is no doubt in this writer’s mind that should the Obama Administration and the LGBT community not prevail on the Section 3 question, they will then attack DOMA under Section 2. There are two very good reason they haven’t. First, they realize that Section 3 is the underpinning that holds together the entire law. Strike it down and you win the war in one fell swoop. Secondly, Section 2 would have to be attacked under the Full Faith and Credit Clause of the US Constitution and here, they have Supreme Court precedent against their arguments.

In 1979, the Supreme Court, in the case of Nevada v. Hall, stated that the Full Faith and Credit Clause did not apply to federal laws and DOMA is a federal law. However, it does touch upon relations between the states and whether the law in one state must be recognized in another state. In that decision, the Court stated: “…the Full Faith and Credit Clause does not enable one state to legislate for the other or to protect its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it.” Furthermore, they said: “The Full Faith and Credit Clause does not require a state to apply another state’s law in violation of its own legitimate public policy.” These are very strong, clear words from the United States Supreme Court. Think of this analogy: Pennsylvania’s deer season runs from November 1 to December 31 while neighboring New Jersey’s runs from November 1 to December 10. On December 12, two hunters from Pennsylvania pursue a deer into New Jersey and kill it. Simply because they are Pennsylvania hunters (even in pursuit of a Pennsylvania deer) does not make them immune to prosecution under New Jersey’s hunting laws.

Obviously, if a gay couple is married in Massachusetts, there is no constitutional requirement whatsoever under the Full Faith and Credit Clause that that marriage need be recognized in Alabama, or any other state that does not recognize gay marriage. Equally important as concerns DOMA, nowhere does it state that Alabama is precluded from recognizing that marriage. Although they may not allow same sex marriage within their borders, they are free to recognize OR not recognize that marriage performed in another state.

At the Federal level, the Congress can amend DOMA with regards to federal law and benefits. For example, the federal benefits bestowed upon the married couple would be portable across state lines regardless of the recognition of marriage in a particular state. However, the recognition of that marriage as concerns state benefits could legally be denied under state laws. In other words, the federal government could conceivably recognize same-sex marriages in states where it is currently allowed, but individual states need not recognize those marriages. This bifurcated method of recognition would certainly avoid any state’s rights issues. It would further move the debate out of the courts and into the Congress where it rightfully belongs. If, as the LGBT community asserts, this is this century’s civil rights issue and that attitudes towards gay marriage in particular and homosexuality in general have changed so dramatically, let them make that case in the legislative process and change DOMA accordingly. If, those changes are so dramatic as they claim, let them make their case state-by-state and change the marriage laws in those states. Most interesting in this case is an amicus brief filed with a litany of major corporations who argue that DOMA, in fact, is a severe regulatory and administrative burden on them. That is, they have to calculate benefits separately and taxes have to be computed on a bifurcated basis. Senator John Cornyn (R-TX) and Sen. Grassley (R-IA) have asserted that repeal of DOMA or a court striking it down would lead to additional outlays in social security payments and decrease tax revenue. This is somewhat disingenuous given the purported current regulatory costs. More importantly, same sex couples pay into social security and Medicare, yet cannot receive benefits married heterosexual receive. That infers, if not cries out, a fairness problem. Additionally, most CBO estimates are that a repeal of DOMA would be basically neutral with an actual $1 billion gain to the Treasury over 10 years (assuming all 50 states recognized gay marriage). Hence, the cost considerations of repeal are negligible and a distraction.

Speaking of tradition, the definition of marriage has always laid with the states. Of course, marital status has federal implications- over 1,300 by last count. Yet, the federal government, for practical purposes, recognizes the state definitions. If, tomorrow a state passes a law allowing brother-sister marriage after considered legislative consideration and debate, in the absence of a federal law to the contrary, the federal government would recognize that marriage for federal purposes. Hence, the federal government can, if they so choose, recognize same-sex marriage and amend DOMA accordingly.

From a personal standpoint, I have always argued that homosexual couples can, through existing laws involving bankruptcy, intestacy and contract law among others, achieve the advantages they cite as lacking absent marriage. In only one instance can I find a significant objection- the Fifth Amendment’s protection of self-incrimination. Namely, one spouse cannot be compelled to testify against the other and only “marriage” defines the spousal relationship. But certainly somewhere there is someone with a good legal brain to get around that conundrum. Further, I know several gay couples who have been in long-term relationships; one couple has two adopted children and some heterosexual-couple families I know should use them as a template on how to raise children in a loving, supportive home. But equally important, it needs to be noted that this couple actually adopted these children in the absence of a marriage license. It needs to be noted that these other gay couples in long-term relationships stay in them in the absence of a marriage license. They are not doing so holding out hope that their state will allow gay marriage; that is not their motivation.

From these personal stories and my research, I am left with the belief that the gay marriage agenda is being pushed by a small, radical subset of the gay community. Most of the gay people I know have the attitude regarding gay marriage as “Hey- it would be great, but it is not going to change my life.” Do we overturn, given the fact that homosexuals are not a suspect class and that same sex marriage is not a fundamental right, not 200+ years of American tradition, but centuries predating American history of the traditional definition of marriage to appease a subset of a subset of the American population?

In the last installment of this series, I will tackle the issue of Proposition 8 which addresses a whole separate set of issues. Suffice to say at this point, as the case winds through the Ninth Circuit, the constitutional issues have been contracted and narrowed. For that reason, any ruling there will be less dramatic and potentially landmark than a decision regarding Section 3 of DOMA.